Hedrick v. Hedrick
| Decision Date | 03 February 1891 |
| Docket Number | 15,703 |
| Citation | 26 N.E. 768,128 Ind. 522 |
| Parties | Hedrick v. Hedrick |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled June 19, 1891.
From the Brown Circuit Court.
Judgment affirmed, with costs.
W. C Duncan and S. Hedrick, for appellant.
F. T Hord, M. D. Emig and R. L. Coffey, for appellee.
The appellant and appellee were husband and wife and had, as the fruits of their marriage, five living children, the oldest twenty-three and the youngest five years of age. Appellant brought this suit for divorce, and appellee filed a cross-complaint. They charged each other with cruel treatment as the grounds of divorce in the complaint and cross-complaint.
Issues were joined by answers in denial to the complaint and cross-complaint. The cause was tried by the court, resulting in a finding in favor of the appellee, giving to her a divorce, the custody of the two youngest children, both daughters, aged respectively five and eight years, and allowing to her $ 1,100 alimony.
The appellant filed a motion for a new trial, which was overruled and exceptions reserved, and then moved for a modification of the judgment which was also overruled and exceptions noted at the time.
The first alleged error discussed is, that the court erred in permitting the appellee to testify as a witness as to the amount of pension money the appellant was receiving from the United States on account of disabilities. It is contended that this was error for the reason that "in granting a divorce the court can only consider the financial ability of the husband at the time, as indicated by the owning of property or wealth which was the mutual earnings of the husband and wife," and that "a pension granted by the United States for disabilities acquired in the service can not be considered in any view as an element of wealth."
This testimony was not objectionable for the reasons urged by counsel.
The statute (section 1045, R. S. 1881) provides that "The court shall make such decree for alimony, in all cases contemplated by this act, as the circumstances of the case shall render just and proper," etc.
For the purpose of determining the amount of alimony to be given in a particular case, the court has the right to inquire into the circumstances of the parties and ascertain the amount of property owned by the husband at the time, the source from whence it came, the ability of the husband to pay by reason of his financial circumstances, his income, and his ability to earn money, as well as his inability to earn money on account of ill health, and upon a full investigation it is the duty of the court to make such an allowance for alimony as is just and proper.
These parties had lived together for years as husband and wife, and had born to them six children, five of whom are still living, three being minors.
The court decreed a divorce in favor of the appellee, and gave her the custody of the two youngest children. The evidence showed the appellant to be the owner of real estate of the value of two thousand to twenty-two hundred dollars, and that he owned personal property to the amount of about ...
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...as to the pension and profit sharing plan owned by plaintiff-appellant is most similar to the question presented in Hedrick v. Hedrick (1891), 128 Ind. 522, 26 N.E. 768, wherein our Supreme Court held that it was not error for evidence to be introduced as to the amount of money which a husb......
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